ROEBUCK -v- SMOJE & ORS [2000] WASC 312

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 312
Case No:	CIV:1309/1998	Heard:	20-23 NOVEMBER 2000
Coram:	HASLUCK J	Delivered:	20/12/00
No of pages:	36	Judgment Part:	1 of 1
Result:	Plaintiff's claim for proof of Will in solemn form allowed
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Parties:	DONALD JOHN ROEBUCK ANTHONY VLADIMIR SMOJE MIRJANA PALMINA SMOJE NEVEN TIHOMIR SMOJE THE RETURNED SERVICES LEAGUE OF AUSTRALIA WA BRANCH INC
Catchwords:	Wills Proof of Will in solemn form Testamentary capacity Undue influence alleged Elderly male pensioner living alone with poor hearing and eyesight Execution of Will arranged by the plaintiff as a friend and principal beneficiary Suspicious circumstances impose upon the Court a requirement of special vigilance Plaintiff's burden of proof discharged in circumstances of the present case Defendants' burden of proof concerning undue influence not discharged
Legislation:	Wills Act 1970, s 13
Case References:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Hall v Hall [1868] LR 1 P & D 481 Nock v Austin (1918) 25 CLR 519 Silvester & Ors v Tarabini & Ors, unreported; SCt of WA; Library No 960062; 13 February 1996 West Australian Trustees v Holmes [1961] WAR 144 Worth v Clasohm (1952) 86 CLR 439 Bella-Lewis v Thompson, unreported; CA SCt of Qld; 220/94; 27 February 1996 Beverley & Anor v Watson & Ors, unreported; SCt of WA (Owen J); Library No 940502; 14 September 1994 Callaghan v Myers (1880) 1 LR (NSW) 351 Durnell v Cornfield (1844) 1 Rob ECC 51 In the Will of Ivory, unreported; SCt of Vic (Eames J); Prob 19 and 25/93; 14 February 1995 In the Will of Moriarty [1956] VLR 400 Kenny v Wilson (1911) 11 SR (NSW) 460 Lister v Smith (1863) 164 ER 1282 Pates v Craig and the Public Trustee, Estate of the late Joyce Jean Cole, unreported; SCt of NSW Equity Division; 106306/94; 28 August 1995 Perpetual Executors, Trustees & Agency Co (WA) v Deacon (1935) 38 WALR 31 Pilkington v Gray [1899] AC 401 Re Crooks (Estate); Akerman v Brown, unreported; SCt of NSW Probate Division (Young J); 107881/93; 14 December 1994 Re Edgar [1919] VLR 683 Re Fenwick [1972] VR 646 Re Walker [1905] 1 Ch 160 Ridge v Rowden, unreported, SCt of NSW Probate Division (Santow J); 100948/95; 10 April 1996 Symes v Green (1859) 165 ER 785 Timbury v Coffee (1941) 66 CLR 277 Winter v Crichton (1991) 23 NSWLR 116 Wintle v Nye [1959] 1 WLR 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ROEBUCK -v- SMOJE & ORS [2000] WASC 312 CORAM : HASLUCK J HEARD : 20-23 NOVEMBER 2000 DELIVERED : 20 DECEMBER 2000 FILE NO/S : CIV 1309 of 1998 BETWEEN : DONALD JOHN ROEBUCK

Plaintiff

AND

ANTHONY VLADIMIR SMOJE

MIRJANA PALMINA SMOJE

NEVEN TIHOMIR SMOJE

First Defendants

THE RETURNED SERVICES LEAGUE OF AUSTRALIA WA BRANCH INC

Second Defendant

Catchwords:

Wills - Proof of Will in solemn form - Testamentary capacity - Undue influence alleged - Elderly male pensioner living alone with poor hearing and eyesight - Execution of Will arranged by the plaintiff as a friend and principal beneficiary - Suspicious circumstances impose upon the Court a requirement of special vigilance - Plaintiff's burden of proof discharged in circumstances of the present case - Defendants' burden of proof concerning undue influence not discharged

Legislation:

Wills Act 1970, s 13

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Result:

Plaintiff's claim for proof of Will in solemn form allowed

Representation:

Counsel:

Plaintiff : Mr R A C Cullen

First Defendants : Mr P R MacMillan

Second Defendant : Mr T Darbyshire

Solicitors:

Plaintiff : Dwyer Durack

First Defendants : Ilbery Barblett

Second Defendant : Kott Gunning

Case(s) referred to in judgment(s):

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Hall v Hall [1868] LR 1 P & D 481
Nock v Austin (1918) 25 CLR 519
Silvester & Ors v Tarabini & Ors, unreported; SCt of WA; Library No 960062; 13 February 1996
West Australian Trustees v Holmes [1961] WAR 144
Worth v Clasohm (1952) 86 CLR 439

Case(s) also cited:

Bella-Lewis v Thompson, unreported; CA SCt of Qld; 220/94; 27 February 1996
Beverley & Anor v Watson & Ors, unreported; SCt of WA (Owen J); Library No 940502; 14 September 1994
Callaghan v Myers (1880) 1 LR (NSW) 351
Durnell v Cornfield (1844) 1 Rob ECC 51
In the Will of Ivory, unreported; SCt of Vic (Eames J); Prob 19 and 25/93; 14 February 1995
In the Will of Moriarty [1956] VLR 400

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Kenny v Wilson (1911) 11 SR (NSW) 460
Lister v Smith (1863) 164 ER 1282
Pates v Craig and the Public Trustee, Estate of the late Joyce Jean Cole, unreported; SCt of NSW Equity Division; 106306/94; 28 August 1995
Perpetual Executors, Trustees & Agency Co (WA) v Deacon (1935) 38 WALR 31
Pilkington v Gray [1899] AC 401
Re Crooks (Estate); Akerman v Brown, unreported; SCt of NSW Probate Division (Young J); 107881/93; 14 December 1994
Re Edgar [1919] VLR 683
Re Fenwick [1972] VR 646
Re Walker [1905] 1 Ch 160
Ridge v Rowden, unreported, SCt of NSW Probate Division (Santow J); 100948/95; 10 April 1996
Symes v Green (1859) 165 ER 785
Timbury v Coffee (1941) 66 CLR 277
Winter v Crichton (1991) 23 NSWLR 116
Wintle v Nye [1959] 1 WLR 284

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1 HASLUCK J: The plaintiff in these proceedings, Donald John Roebuck, contends that he is the lawful executor of the last Will of Pasko Smoje, late of 222 Great Eastern Highway, Ascot, who died on 4 October 1997.

2 The plaintiff seeks an order that the Court pronounce in solemn form for the force and validity of a Will which is said to have been executed by the deceased on 7 March 1996 in the presence of two witnesses, namely, Elaine Turnbull and Linda Pallier.

3 The writ was issued against the first defendants as children of the deceased and as persons entitled to share in the estate of the deceased in the event of an intestacy. The defendant's son, Neven Smoje, had entered a caveat. The second defendant is named as a beneficiary in the 1996 Will and therefore has an interest in the outcome of the proceedings.

4 By their defence and counterclaim, the first defendants admit that they are all the lawful children of the deceased. They do not admit that the 1996 Will was duly executed and put the plaintiff to proof of the same. They say further that at the time the Will purports to have been executed the deceased was not of sound mind, memory and understanding. Particulars provided in support of this plea are that at the time the deceased purported to execute the Will he was 81 years of age and suffered from various ailments, including decreased hearing and impairment of vision.

5 The first defendants say further that by reason of his ailments, the deceased was in such a condition of mind and memory as to be unable to understand the nature of the act of a purported execution of a Will and its effects, the extent of the property of which he was disposing, or to comprehend and appreciate the claims to which he ought to give effect.

6 The first defendants go on to allege that the execution of the Will was obtained by the undue influence of the plaintiff and others acting with him, namely, the two individuals who witnessed the Will, Elaine Turnbull and Linda Pallier. The defendants contend that the plaintiff took advantage of the age of the deceased and of his physical condition and induced the deceased to make the purported Will.

7 The first defendants plead in par 7 of their defence and counterclaim that the deceased at the time of the execution of the Will did not know and approve of the contents thereof. The particulars provided in support of this plea are that the deceased did not give any instructions for the purported Will and the purported Will was not read over or explained to the deceased, nor did the deceased read the purported Will himself before

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it was executed, and the deceased was not aware of the purported Will's nature and its effect.

8 As a consequence of the various facts and matters set out in the defence and counterclaim, the defendants say that the deceased died intestate. I note in passing that the defendants by their counterclaim initially sought a decree that the deceased died intestate, but a claim for relief in these terms was subsequently abandoned at the trial of the action. Counsel for the first-named defendants recognised that if the defence succeeded, with the result that the Court did not pronounce for the validity of the 1996 Will, then the position would be at large. The defendants, or any other interested parties, would be left to determine whether they should proceed upon the basis that the deceased had died intestate or whether application should be made to obtain probate in respect of an earlier Will executed by the deceased on 1 August 1991.

9 The 1991 Will provided for the appointment of Patricia Rowland as executrix and purported to devise and bequeath the whole of the deceased's estate, both real and personal, to the Returned Services League of Australia WA Branch Inc - the second defendant in these proceedings - to be used by the League in any way it sees fit. I note in passing that the RSL was named as second defendant in the present proceedings, because the 1996 Will purported to make a bequest of $10,000 to the RSL. The RSL therefore had an interest in the outcome of the proceedings, either as a beneficiary named in the 1996 Will or possibly as the party solely entitled under the 1991 Will. Counsel for the second defendant indicated at the commencement of the trial that his client would simply abide any ruling made by the Court. Thereafter, he played no further part in the proceedings.

10 The deceased was born in Yugoslavia on 12 September 1914. At the time of his death, he had been in Australia for over 60 years and during the second World War saw active service in New Guinea as a member of the Australian armed forces. He married Christina Smoje. The first defendants are the children of that marriage, being two sons and one daughter. I understand from the evidence that the deceased worked as a bricklayer, but with the passage of time, and certainly in the years immediately preceding execution of the 1996 Will, he was obliged to adopt the lifestyle of an invalid pensioner.

11 Neven Smoje said in evidence that he was the youngest son of the deceased. He lived with his father from birth until early 1963, when he and the rest of the family, including his mother, moved to Sydney. He

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finished school in 1968 and started his tertiary education the following year. Between then and 1981, when he returned to Perth permanently, he would visit his father in Perth every one or two years on his annual holidays. I understand that Christina Smoje and the other two children are still resident in Sydney, although Christina Smoje is now elderly and in a state of ill-health.

12 Neven said in evidence that after his return to Western Australia in 1981, he visited his father quite regularly prior to his marriage in May 1983. After his marriage, he visited him now and then, on which occasions his father would talk about episodes of family history, including reference to Russian icons and a stolen family painting. The front rooms of his father's house at 222 Great Eastern Highway were directly facing a road that was busy with traffic throughout the day, with the noise of the traffic being clearly audible from inside the house.

13 Neven's mother owned three blocks of land adjacent to his father's property. It seems, however, that the deceased did not encourage a close relationship with his children and Neven himself conceded in the course of his evidence that as the years went by, because his father was a rather difficult and obsessive man, contact with his father became infrequent. The last time Neven saw his father would have been in early 1995.

14 It is apparent from the evidence that as at 1 August 1991, being the date on which the deceased executed his 1991 Will in favour of the RSL, he had virtually no contact with members of his family circle, apart from an occasional visit from Neven. It is significant that he chose to make a Will whereby the whole of his estate would be devised and bequeathed to the RSL. The proposed executrix, Patricia Rowland, was an employee of the RSL, this Will having been prepared by Kott Gunning who at that time generally acted as the recommended firm of solicitors for any member of the RSL who wished to confer a benefit upon that body.

15 Patricia Rowland gave evidence on behalf of the second defendant. Her evidence was of assistance in understanding the circumstances in which the 1991 Will was brought into existence. She had worked for the RSL for many years and knew of the deceased as a member of the RSL who was accustomed to call in at the RSL premises from time to time for a chat. According to her, his manner was gruff, cranky and rather rude and he always seemed to be complaining about being in pain. He walked with two sticks and had difficulty climbing the stairs to her office and in getting into and out of chairs. He was hard of hearing and she had to raise her voice somewhat to speak to him.

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16 Patricia Rowland said in evidence that in 1991 the deceased told her he wished to execute a Will to leave his estate to the RSL. She referred him to the RSL solicitors, Kott Gunning, but did not have any involvement with the Will other than this. She did not discuss his testamentary intentions with him at any other time that she could recall. Some time after 1991 (she was not sure when) she received a telephone call from a neighbour who was worried about the deceased's health. She went to his house, but did not actually enter it. She met the deceased on the verandah outside and to her eye he looked quite grey in the face and untidy. She said in evidence that this encounter may have been the last time she saw him.

17 The 1991 Will reflects a desire that Patricia Rowland - the trustee appointed by the Will - employ Kott Gunning as her solicitors in connection with the administration of the estate. The RSL was the sole beneficiary. This suggests that as at 1991, at a time when legal advice was available to him, the deceased made a considered decision not to confer benefits under and by virtue of his Will upon any member of his family circle.

18 Dr Jerzy Tarnawski gave evidence on behalf of the plaintiff concerning the state of health of the deceased in the years subsequent to the deceased's execution of the 1991 Will. At that time Dr Tarnawski was working as a general practitioner for the Perth Medical Centre at 713 Hay Street, Perth. The deceased was one of his patients and was seen by Dr Tarnawski on eight occasions in 1995 and again on 29 February 1996. On the latter occasion, the deceased was brought in by two policemen complaining of pain in his legs and difficulty walking. He was given a full examination and sent to Royal Perth Hospital, but was discharged the same day.

19 Dr Tarnawski said in evidence that the deceased was able to communicate well. He understood instructions given to him and appeared to be of stable mind. Dr Tarnawski noticed no problem with his mental capacity. The patient was wearing hearing aids, but Dr Tarnawski could not recall any difficulty in regard to his hearing.

20 In the course of his evidence, Dr Tarnawski was asked to comment on the various items set out in the statement of defence which were said to comprise the deceased's various medical problems and ailments at the time he executed the disputed Will on 7 March 1996.

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21 Dr Tarnawski said that the deceased was cured of malaria and this did not represent a problem. He did not notice any psychiatric or paranoid symptoms and was not aware of any problems with hallucinations. The deceased had low back pain. There was a past history of viral gastroenteritis. Pathology results did not support the suggestion of anaemia and Dr Tarnawski did not treat the deceased for anaemia at any time. The deceased had a subcapital fracture of the left neck of the femur and was in hospital for this in December 1995. The record showed that he had a heart attack in 1993 caused by ischaemic heart disease, but he did not complain of this in 1995/1996, although he was on anti-angina medication. Anterior myocardial infarction was related to the heart attack in 1993. The records showed the deceased had a stroke in 1993, but Dr Tarnawski did not notice any residual symptoms of the stroke.

22 The deceased did not complain of diverticulitis. He had a peptic ulcer, although Dr Tarnawski did not prescribe any medication for this. Dr Tarnawski's records do not reveal any diagnosis of chronic obstructive airways disease or damage to bronchi. He did not notice any cellulitis, although he may have had mild cellulitis, or skin infection, in mid-1995. Dr Tarnawski described the deceased as an intelligent person. He had no mental problems. Dr Tarnawski did not notice any dysarthria, that is to say, difficulty in speaking.

23 Dr Tarnawski was aware that his patient had decreased hearing, but bilateral hearing aids clearly compensated for this and there was no difficulty in communication. Dr Tarnawski could not recall whether the deceased wore glasses, but he was not conscious that the deceased had any problem with his vision. He was able to sign the medical forms without difficulty. Dr Tarnawski did not examine the deceased's vision because he had no reason to do so. He agreed under cross-examination that it is possible that he pointed out the place where the deceased had to sign the medical forms and he accepted that he himself conducted no tests in regard to dementia or memory loss. He could not recall having to speak loudly to the deceased. He did not examine his patient's hearing as it did not appear to be an issue. The conversation between them was fluent.

24 Helen Goulios gave evidence on behalf of the defendants. She holds the degree Bachelor of Science from the University of Western Australia and a diploma in audiology from the University of Melbourne. Her field of expertise is in regard to the non-medical aspects of hearing loss. She confirmed that the deceased was a client of the Commonwealth government agency, Australian Hearing. She presented three written

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reports reflecting an analysis of the deceased's attendances at Australian Hearing in the period 1985 to 1996. The record showed that he last attended for audiological review on 25 September 1996.

25 The deceased's initial assessment results in 1985 indicated a bilateral moderate to severe sensorineural hearing loss. Low powered hearing aids were subsequently fitted. He attended for other tests and updating of his hearing aids subsequently.

26 An audiogram performed on 10 November 1993 was not significantly different from his initial audiogram. The file notes indicate that minor adjustments were made to his hearing aids on the same day and that the aids were working well. According to Ms Goulios, at that moment in time, the deceased would have had some difficulty hearing normal conversational speech in quiet conditions without his hearing aids. With his hearing aids, he is likely to have managed well with conversational speech in quiet conditions, but would still have had difficulty understanding speech in background noise.

27 The next audiogram was measured on 21 June 1996 and again showed a moderate to severe sensorineural hearing loss in the right ear and a severe to profound mixed loss in the left ear. The left ear was also impacted with wax which was the most likely cause of the change in hearing to that ear compared with the previous test. The audiologist noted that further investigation might be needed following removal of the wax. It was also noted that the left aid was not working and arrangements were made for two new hearing aids to be fitted.

28 Ms Goulios went on to say that given the deterioration, and without his hearing aids, the deceased would have had increased difficulty understanding normal conversational speech compared with the results obtained on 1993. As his left hearing aid was not working, he would have been reliant on hearing in his right ear. With his hearing aid in the right ear alone, he is likely to have been able to understand normal conversational speech in quiet conditions, if the speaker was sitting either in front or on his right side. He would have had difficulties if the speaker was sitting on his left or if there was background noise in the room.

29 Against this background, it was difficult for Ms Goulios to say exactly how well the deceased was hearing at the time of making the disputed Will on 7 March 1996. She noted that traffic noise is an example of background noise where there is increased difficulty in discriminating speech from other noise. The degree of difficulty increases as the

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intensity of the background noise increases. Ms Goulios also presented to the Court various graphs she had prepared which reflected the file notes and were designed to illustrate what portion of the sound spectrum would have been accessible to the deceased unaided and with hearing aids. She accepted that as at June 1996, if he had a working hearing aid in the right ear, then one could probably communicate with him without having to shout.

30 The plaintiff, Donald Roebuck, is a pensioner presently living at 15 Kalgoorlie Street, Ascot. He said in evidence at the trial that he met the deceased, Pasko Smoje, in about 1978 as a person living nearby. Mr Roebuck was on a disability pension and had some free time, so he began doing odd jobs for the deceased, such as mowing his lawns, taking him shopping, driving him to doctors' appointments, and picking up newspapers for him. For many years, Mr Roebuck has been involved in training horses and he would therefore sometimes take the deceased for drives when he had to feed the horses or when he went to Cottesloe beach for a swim. According to Mr Roebuck, he used to contact the deceased every day or two.

31 Mr Roebuck said in evidence that a friend of his, Linda Pallier, participated in some of these outings. Linda Pallier moved into the Roebuck house in Kalgoorlie Street in 1995 as a boarder. She was simply a friend. There was no intimate relationship between them. This meant that she also called on the deceased from time to time and used to cook meals for him.

32 Linda Pallier gave evidence to the same effect. She said that between 1992 and 1995 she was running a delicatessen in Cottesloe and at that time Mr Roebuck and the deceased would often call in at the delicatessen. In October/November 1995, she sold her business and moved into Mr Roebuck's house. At that stage, she was working as an assistant manager for Hungry Jack's and would work a combination of day and night shifts. Accordingly, on her evidence, she would see the deceased quite regularly at different times of the day. He would often wander over to Mr Roebuck's house and was allowed to use the phone there if he wanted to. She said that she was often involved in long and interesting conversations with the deceased and discovered that he was a very well-read person.

33 At the time of applying for probate of the 1996 Will, the plaintiff filed an affidavit sworn by himself (in answer to a requisition from the probate office) which provided a short account as to how the disputed

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Will came to be executed. In that affidavit, he said that during the period he lived near to the deceased he assisted him with his gardening, shopping and washing and frequently drove him to medical and hospital appointments and provided him with meals from time to time.

34 Mr Roebuck said further that on 6 March 1996 the deceased asked him to organise a Will for him and to arrange for Elaine Turnbull and Linda Pallier to witness the Will. Mr Roebuck suggested that a Justice of the Peace, one Norman Parnham, be brought in to make the arrangements, but the deceased wanted people he knew and was not prepared to visit a solicitor or to have the proposed Justice of the Peace present. Mr Roebuck said in his affidavit that the deceased was a very suspicious man and particularly wary of strangers.

35 Mr Roebuck said that on 6 March 1996 he contacted Elaine Turnbull who had known the deceased for a few years. She said she would attend the deceased's house the following day. The deceased had his own typewriter and when Elaine arrived the following morning, she typed what he dictated onto a Will form which she had brought with her. There were some mistakes in the typing and as a result another Will form was required and the testator produced one from his papers. While the final draft of the Will was being typed, Mr Roebuck fetched the other witness, Linda Pallier.

36 Mr Roebuck in his affidavit went on to say this:

"9. In our presence the testator told Elaine what he wanted in his Will and also what he wanted in a note which was typed out at the same time.

10. When Linda Margaret Pallier and I returned to the house of the testator the Will had been typed and it was then read to the testator by Elaine in our presence. The document was then handed to the testator who read it and then signed it and the note in the presence of the three of us. The document was then formally witnessed by each of Elaine and Linda.

11. I then took the Will away to photocopy and later gave the testator a photocopy and I retained the original at his request."

37 I have already described the terms of the 1996 Will. Donald John Roebuck is appointed executor and is directed to pay all debts and funeral

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expenses. The deceased gives, devises and bequeaths to the plaintiff his house and land at 222 Great Eastern Highway, Belmont, the balance in two named bank accounts, and the residue of the estate. $10,000 is give to the Western Australian branch of the Returned Services League. The Will bears the signature of the deceased and the signature of the two witnesses I have just mentioned.

38 The letter allegedly typed up by Elaine Turnbull and signed by the deceased on 7 March 1996 is in these terms:

"To whom it may concern

I Pasko Smoje hereby revoke my previous will made in favour of The Returned Services League. Nevertheless I still leave to them Ten thousand dollars.

Also I do not want any member of my family to benefit from me after my death as they have not bothered to contact me in approximately the last thirty years.

I have known Don Roebuck for fifteen years and heis [sic] the only person to help me over the last five years when my health further deteriorated. He has constantly mowed my lawns, driven me to doctors and hospitals, taken me shopping, done my washing and brought me over meals from his house.

In appreciation of this I bequeath the major part of my estate to him.

I leave my house and land at the above address to Don Roebuck, My Westpac Bank Account, cnr Barrack St and Murray St. Perth, The balance of my Commonwealth Bank Account at 150 St. George,s [sic] Terrace, Perth, to Don, after Ten Thousand Dollars has been taken to give to the WA Branch of the Returned Services League and my funeral expenses have been paid.

I have discussed with Don Roebuck the outcome of my personal property and affects [sic] after I am deceased and consequently leave all the remainder of my estate to him."

39 At the trial of the action, Mr Roebuck provided more detail bearing upon the preparation and signing of the two documents in question. He was also cross-examined at length about these matters and about the

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version of events portrayed in his probate affidavit. He eventually conceded that there were various inconsistencies in his portrayal of the relevant events, but he attributed this to the passage of time, oversight, and not being fully aware of the importance of the affidavit. I note in passing that in an earlier affidavit sworn in support of the application for probate, Mr Roebuck, as the executor named in the 1996 Will, exhibited a statement of assets and liabilities. This statement suggests that the net value of the estate in Western Australia is $265,696.73, comprising the land and improvements at 222 Great Eastern Highway, Belmont, to a value of $200,000 and with the balance of the estate being represented by funds on deposit in three banks accounts plus household furniture and effects.

40 Mr Roebuck said in evidence at the trial in regard to the execution of the Will that on the previous day, 6 March 1996, at the explicit request of the deceased, he contacted Elaine Turnbull and asked her to obtain Will forms from Sands & McDougall. He made arrangements for her to come to the deceased's house early the next morning. Because the deceased had asked for Linda Pallier to be a witness to the Will, he ascertained that she would be at home and available if required. He also moved a table into the front room close to the front door as a place where the Will could be typed up and signed.

41 At about 7 am the next morning, Mr Roebuck attended at the deceased's house and was there when Elaine Turnbull arrived. He left Elaine with the deceased and went to the stables down the street, about 200 yards away, to attend to some chores concerning his horses and by the time he came back the Will was being typed. He asked the deceased whether he wanted Mr Parnham to witness the Will, but the deceased instructed him to get Linda. While he was getting Linda, a friend of his, a real estate agent, Ron Clements, happened to drive up, so he returned to the deceased's house with Mr Roebuck and Linda. According to Mr Roebuck, he could not remember too much about the preparation of the Will because he spent most of his time on the verandah talking to his friend, Mr Clements, and only caught an occasional glimpse of what was happening in the front room as he went to and fro.

42 After the Will had been signed by the deceased and the two witnesses, a question arose as to whether the letter that the deceased had in mind to write should be witnessed, but the deceased was insistent that this was not necessary. When the Will was completed, the deceased asked Mr Roebuck to keep the original and to get the Will photocopied. This he did. Mr Roebuck kept the original Will at home and gave two

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copies to the deceased, one of which he kept under his mattress in a plastic folder.

43 According to Mr Roebuck, he found the copy Will under the deceased's mattress after the deceased died. Mr Roebuck kept the accompanying letter. Mr Roebuck said in evidence that both the Will and the accompanying letter were typed up by Elaine Turnbull on an old typewriter owned by the deceased which was positioned on the table in the front room when the typing was being done on the morning of 7 March 1996.

44 Under cross-examination, Mr Roebuck conceded that, contrary to the version contained in his probate affidavit, he was not present when the Will was read to the deceased, although he believed it was read to the deceased by Elaine Turnbull. He was unable to recall whether he was present when the accompanying letter was signed. He said that at some stage he made a second trip to the stables and because he was going to and fro in the course of conversing with his friend, Mr Clements, who was on the verandah, he was not present in the front room for much of the time. When pressed, Mr Roebuck conceded that, contrary to his probate affidavit, he was not present on an occasion when the deceased told Elaine Turnbull what he wanted in the Will. He had some difficulty in recalling the exact sequence of events and was not sure when precisely Linda left the premises. He said that he definitely saw the deceased reading the Will and insisted that the accompanying letter had not been typed when the Will was signed.

45 Under cross-examination, Mr Roebuck conceded, contrary to the assertion in his probate affidavit, that the deceased did not sign the Will and the accompanying letter in the presence of Mr Roebuck and the two witnesses. He insisted that the statements in the affidavit were in error because he had not realised that these matters of detail were important. He was aware that the 1991 Will had left everything to the RSL and that the effect of the new Will would be to vest the estate in himself, Donald Roebuck, with a gift of $10,000 to the RSL.

46 The witness, Elaine Turnbull, did not give evidence at the trial of the action because she was out of the jurisdiction being now resident in England. An order had been made prior to the trial of the action pursuant to O 38 r 1 that a deposition be taken from her prior to the trial. After some debate at the trial, a ruling was made that in the exercise of a discretion allowed by the terms of the order, the Turnbull deposition should be received in evidence in accordance with reasons given by me at

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the time of the ruling. I will not reiterate those reasons, save to note that an opportunity was afforded to counsel for the first defendants to cross-examine Elaine Turnbull at the time her evidence was given on oath in the presence of the Master of the court and cross-examination took place accordingly. It has been apparent since the time of that examination that leave would be sought to adduce the deposition in evidence at the trial upon the basis that the witness was in England.

47 The Turnbull deposition was to this effect in regard to the events of 7 March 1996: she said that she went into the front room of the house and gave the deceased the Will forms she had obtained, whereupon he asked her to type up the Will on his typewriter. She asked him what he wanted to say. This was consistent with Mr Roebuck's comment to her that she should type up the Will in accordance with the deceased's instructions. After she got started, Mr Roebuck left to fetch Linda who was going to be the other witness.

48 In describing the instructions she received from the deceased, Elaine Turnbull said that the deceased wanted to revoke his previous one "to the RSL" and would make a new Will "to leave the house and my money to Don". The deceased gave her the address of his house and the number of his bank accounts. She confirmed that the document identified as the 1996 Will was the document she typed up in accordance with the deceased's instructions, including the gift of $10,000 to the RSL. She confirmed that the Will was signed by the deceased in the presence of she and Linda. The order of signing was the deceased, Linda and then herself.

49 Elaine Turnbull also said that after taking the Will out of the typewriter, she read it to the deceased and asked him whether everything was okay. After that, she handed the document to him. He had it in his hand looking at it, and she presumed he read it. According to her, he signed it after that, then he gave it to Linda for her signature and then it came back to Elaine Turnbull herself, who was the last to sign.

50 According to Elaine Turnbull, after the deceased had signed the Will he asked her to type up a letter which was to act as a sort of a backup for the Will because his previous Will had been made out in favour of the RSL. Her recollection was that he did not want to leave anything to his family because he had not seen them for 30 years.

51 Elaine Turnbull identified the document which was eventually received in evidence as the accompanying letter dated 7 March 1996. This was the letter she typed up in accordance with the deceased's

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instructions. He did not dictate the letter word for word. She "sort of did the grammar" because his English was rather stilted. The deceased then read the letter and signed it in Elaine Turnbull's presence. Mr Roebuck did not speak while the letter was being typed up and her recollection was that it was at about this time that he took Linda back home. Under cross-examination, she said that Mr Roebuck was not present the entire time that she was typing the Will and that he did not have any input into what was being typed. It was her belief that the deceased understood what he was doing at the time of signing the Will.

52 Linda Pallier gave evidence that was generally consistent with the account provided by Elaine Turnbull. According to her, Mr Roebuck went to the deceased's house early in the morning and was there for a while before he came back and got her. She accompanied him to the deceased's house in the company of a friend who had arrived simultaneously. When they arrived at the deceased's house, the deceased and Elaine Turnbull were sitting inside and Elaine was about to, or had just, taken the Will out of the typewriter. Elaine then read the Will out aloud to the deceased and, according to Linda Pallier, he had on his glasses and read the Will to himself. He said that it was okay and signed it. Linda herself signed it and then gave it to Elaine. All three signatories were in the room at the same time while the Will was being signed. Linda then left to get ready to go to work and, as she was leaving, the deceased said something about a letter. She went home and Mr Roebuck stayed talking to the man who had walked across to the deceased's house with them.

53 Linda Pallier was cross-examined at some length about these matters, but this did not lead to any significant change in the version of events she had already provided. On her account, while the Will was being signed, Mr Roebuck spent most of the time outside with his recently arrived friend. On her evidence, Elaine Turnbull read the Will aloud and the deceased also read the Will to himself.

54 I pause to note that according to Linda Pallier the deceased was wearing a shirt and jumper at the time while as Mr Roebuck's recollection was that he was wearing trousers, coat and tie because he was about to go into the city. Each of the descriptions provided by Mr Roebuck and the two witnesses left an impression that the proceedings were conducted at the level of the normal conversation and that the deceased did not have any difficulty in understanding what was going on.

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55 Mr Roebuck said in evidence that at about this time he was becoming concerned about the deceased's wellbeing. He could only move around the house by using a walking-frame and because of the general clutter in the house, including inflammable material close to the stove in the kitchen, Mr Roebuck felt that his friend was at risk. He would not be able to get out of the house if a fire occurred. According to Mr Roebuck, he was the one who suggested that the deceased should find better accommodation.

56 Narelle Lancaster gave evidence on behalf of the defendants. She is an occupational therapist. During 1996, while she was working at Bentley Lodge, the deceased was one of the patients who participated in occupational therapy programmes conducted by her. She conducted various assessments of the deceased's mental and emotional capacity to live independently.

57 These assessments included an interest checklist on 7 May 1996, a simple cognitive assessment on 7 May 1996, a MEAMS test on 11 June 1996 and a self-care assessment (coinciding with a home visit) on 18 June 1996.

58 A copy of the simple cognitive assessment conducted by Narelle Lancaster on 7 May 1996 was received in evidence. Her note at the time was that the deceased was reluctant to undertake or complete the assessment, though with encouragement he attempted all tasks. He scored 48 out of 52, indicating minimal cognitive impairment, with deficits being detected in short-term memory only. Narelle Lancaster noted language difficulties and unco-operative behaviour. Her notes indicate that no abnormality was detected in regard to orientation, simple money handling skills, ability to use common items such as scissors and pencil, motor planning and constructional ability, ideomotor ability, ability to read and follow a simple instruction. A problem was noted in regard to short-term memory.

59 Narelle Lancaster's MEAMS assessment (the Middlesex Elderly Assessment of Mental State) of 11 June 1996 reviewed various matters. In her summary, she noted that the deceased was brief and decisive regarding his interests when asked what he would most enjoy in occupational therapy. The deceased stated that he wanted to be free and away from hospital, but with encouragement identified various interest areas. She said in evidence that she had some difficulty in communicating with him. She could not recall exactly what the difficulties were, but it most likely involved having to repeat herself or having to talk very loudly.

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60 During a self-care assessment in about April 1996, she visited the house where he lived alone. She found that he had left open urinary bottles around the house. While bathing he did not adjust the water-flow when it became too hot. He would not dress himself properly without prompting. He would forget to turn off his stove and to clean up after a meal. The house was in dire need of cleaning. It was so full of clutter that he could not navigate his walking-frame through the house with safety. The windows and doors of the house had been boarded up and she had fears for the deceased's safety if he remained alone in his house. As a result of her findings, she arranged for Silver Chain and Meals on Wheels to attend the deceased, but to the best of her recollection he refused them entry to his house after a brief period, following which he resumed caring for himself.

61 Narelle Lancaster said that although in her opinion the deceased's judgment about his circumstances was impaired - and she assessed him as lacking insight into his condition - nevertheless it was possible to carry on an apparently rational conversation with him.

62 Dr David Brown was a consultant psychiatrist at Bentley Lodge, Bentley Health Service, as part of the Western Australian Government Health Service. The deceased was a patient at the Lodge and was seen weekly by Dr Brown during the period 9 April 1996 to 29 November 1996, when he was discharged. He was a voluntary patient during this time and was discharged by mutual agreement between him and the staff.

63 Dr Brown said that Bentley Lodge is a psychogeriatric assessment, or an elderly mental health unit. Its function is to make judgments of mental state to determine whether a person is able to make judgments about their living conditions. The Lodge aimed to improve the deceased's general condition to the point where he could manage at home with appropriate support.

64 According to Dr Brown, the deceased's main problems were that he had some physical disability, mainly his need to use a walking-frame and his difficulty in walking unaided. His second main problem was his lack of perception of his physical needs and his obstinate nature. When it came to questions and official forms, the deceased would often say: "I don't want to be bothered by this sort of thing." Despite this, he was generally well liked and well thought of. In the end, he was discharged to a normal nursing home.

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65 So far as Dr Brown could recall, the deceased was not on any significant psychiatric medication while he was in Bentley. He was obstinate and prickly, but overall Dr Brown would not describe him as a difficult patient. Dr Brown described him as rational and lucid, other than in relation to his assessment of his ability to live on his own.

66 In a report to the plaintiff's solicitors prepared after these proceedings had been commenced, Dr Brown touched on these matters again and said that the deceased exhibited a rigid, obstinate, prickly demeanour throughout his stay in hospital. He had mild depressive symptoms on admission which had lifted by the time of his discharge. At no time did Dr Brown find any evidence of psychotic symptoms such as hallucinations or delusions. A Folstein mini-mental state examination gave a score of 25/30 (less than 23 generally indicating mild/moderate dementia).

67 Dr Brown said that he did not ask specific questions relating to testamentary capacity, as they did not seem relevant at the time. In summary, he would say that the deceased had a rigid, prickly personality and marginal cognitive impairment. Transient depressive symptoms were understandable in terms of his reluctant acceptance of the need for nursing home care.

68 In Dr Brown's view, the deceased understood the nature of what he was doing and in making a Will would understand that he was making a disposition to take effect after his death. In his estimation, the deceased knew he owned his home and had a bank account and Dr Brown considered the deceased would have realised the extent and character of the property he was dealing with in general terms. The deceased was aware of his estranged wife and children, but did not seek to contact them or wish the hospital to do so while he was a patient. Although ill-disposed to his relatives, Dr Brown found no evidence of delusions concerning them. Dr Brown had no doubt the deceased would have comprehended and appreciated the claims which naturally ought to press upon him or to which he ought to give effect.

69 Dr Brown also gave evidence concerning the deceased's medical problems. In his view, the deceased's physical illnesses, whether he suffered from them or not, did not affect his mental state or decision-making capacity at the time he made the Will. He did not suffer from hallucinations of sound or vision and there was no evidence to suggest he suffered from psychopathic personality, emotional instability, paranoia and hypomania.

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70 Under cross-examination Dr Brown agreed that the Bentley Lodge progress notes included a note to the effect that the deceased was diagnosed with an unspecified personality disorder, but according to Dr Brown this entry should be characterised as an observation in passing and not be treated as a definitive assessment or as the whole truth. Dr Brown was also questioned about some other notes and various other matters, but did not resile from his evidence-in-chief. He would not concede that the deceased was subject to delusions. He agreed that at times the deceased was inclined to act in an angry and eccentric way. The deceased was not fluent in conversation, but there was no real difficulty in communication.

71 In November 1996, the deceased returned home from Bentley Lodge hospital. I pause to note that, not long afterwards, in early 1997 the deceased was prescribed stronger reading glasses by a Dr Anastas. In a written report prepared subsequent to commencement of these proceedings, Dr Anastas reported on having reviewed the deceased on 18 February 1997 at Hollywood Hospital. He observed that if the deceased was supplied with and wearing an appropriate correction, then it would be reasonable to conclude that the deceased would have been capable of reading the text of a Will in March 1996. It is unlikely the deceased would have been able to read the Will without optical aids. He had been prescribed spectacles by Dr Philip McGeorge in 1992. Near (reading) acuities with the then prescribed glasses were not recorded. It should be noted that these glasses had a reading addition that was somewhat weaker (one dioptre) than those prescribed seven years later in 1997, where it was demonstrated that he could read N10-sized text with these spectacles.

72 It was common ground at the trial that the deceased died on 4 October 1997. It seems that Mr Roebuck commenced to act as custodian of his house and possessions immediately. The deceased's son, Neven Smoje was informed of the death shortly afterwards by a third party, but by that time Mr Roebuck had arranged for the deceased to be cremated. Mr Roebuck agreed under cross-examination that in the days following the deceased's death he himself made no effort to contact family members. He and Linda Pallier were the only people at the funeral parlour.

73 Patricia Rowland said in evidence that she received a visit from Mr Roebuck. She had not met or heard of him until then. He identified himself and told her that the deceased had passed away two days ago and that the cremation had been held the previous day.

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74 She asked him why he had not told the RSL earlier, as the RSL would have liked to have attended the funeral and given him the last post and laid a poppy on the grave. Mr Roebuck replied that it had been the deceased's wish that nobody be told of the funeral, and that nobody aside from Mr Roebuck had been there. Patricia Rowland told Mr Roebuck that the deceased's Will was with Kott Gunning. Mr Roebuck indicated that he had a more recent Will, and her recollection is that she was given a copy of it. She suggested he speak to Kott Gunning to sort out which Will was the valid Will. Shortly after Mr Roebuck's visit, she received a telephone call from a neighbour of the deceased who was upset at not having been invited to the funeral.

75 The defendants called as a witness Malcolm O'Hara who had previously been a neighbour of the deceased and then moved a short distance away to 12 Kalgoorlie Street.

76 Mr O'Hara said in evidence that he had a good relationship with the deceased. When the deceased went to Hollywood and Bentley Hospitals he would visit him and take him gifts. He could not recall seeing Mr Roebuck mowing the deceased's lawn or performing any other tasks or chores for him. One day in about October 1997, Mr Roebuck was driving along Kalgoorlie Street when he saw Mr O'Hara and stopped to tell him that the deceased had died. Mr O'Hara remembered the deceased telling him that his son worked at the Department of Immigration, so Mr O'Hara rang the department and left a message for the deceased's son. He told the person who rang him back that the deceased had died.

77 Under cross-examination, Mr O'Hara agreed that the plaintiff was a friend of the deceased. He was prepared to accept that the plaintiff spent many hours talking to the deceased and that this was probably a source of consolation to him, given the deceased's circumstances.

78 I must also refer to the evidence of Sara Tomasetti who was called as a witness on behalf of the defendants. She was employed as a social worker at Brightwater where the deceased was a resident for about six months during 1997. According to her, the deceased was a difficult man and very obstinate. She was able to converse with him and he was generally oriented as to time, place and person. She observed that his long-term memory was good and that he was mobile and independent.

79 Her records indicate that on 19 June 1997 she spoke to the deceased about a letter a Mr Roebuck wanted him to sign. The deceased was concerned about the letter and did not know what it was about. She

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contacted Roebuck who came in to see her on 3 July 1997 accompanied by a woman called Linda and Roebuck's son. The letter was something to do with plumbing work he had arranged to have done for the deceased. It was typed up on the basis that it had been written by the deceased, although she could not remember to whom or what the letter was addressed. Mr Roebuck told her he organised the deceased's papers for a tax return to be done with an accountant. She told Roebuck that it was not appropriate for him to ask the deceased to sign a letter or any document. She then reassured the deceased that he did not have to sign anything.

80 When the deceased died on 4 October 1997, she contacted Patricia Rowland of the RSL as the deceased had told her that he had left all his money to the RSL. The following day she told Roebuck that she had liaised with the RSL about the Will. Roebuck told her that the deceased had made a more recent Will. She then told him to liaise with the RSL about that.

81 For the sake of completeness, I must also refer to evidence bearing upon the plaintiff's financial circumstances, and his relationship in that regard with Linda Pallier. Most of this evidence came before the Court as a result of extensive cross-examination.

82 The plaintiff is in receipt of an invalid pension of $370 per fortnight and, as a consequence of doing some occasional work as a horse-trainer, has a share in a racing syndicate. It seems that in order to purchase his home at 13 Kalgoorlie Street, the plaintiff, given his limited income, persuaded his friend, Linda Pallier, who was in receipt of regular earnings, to become a joint borrower of the necessary funds. This meant that her name was placed on the title as the registered proprietor as to a one-eighth share. Both the plaintiff and Linda Pallier affirmed in evidence that in fact she has no beneficial interest in the property.

83 Subsequent to the deceased's death, and at a time, apparently, when the plaintiff believed he would receive substantial benefits under the deceased's Will subject to compliance with some comparatively minor formalities, the plaintiff acquired the adjoining property at 15 Kalgoorlie Street, but as 13 Kalgoorlie Street was to be used as security for the borrowings, it again became necessary for Linda Pallier's name to appear on the title as to a one-eighth share. The plaintiff said that he was using the proceeds of the borrowings on the first house to pay the monthly instalments due on the second house.

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84 Linda Pallier said in evidence that she did not stand to gain anything from these transactions, and was not sure what income was being used to service the borrowings, although she was aware that rent was being received from one of the properties. When pressed, she agreed that she would be exposed to liability if the payments were not kept up, but she seemed to think that even if the plaintiff failed in his claim concerning the disputed Will, there was sufficient value in the properties to avert the risk of any personal liability being attached to her. She said she did not realise the plaintiff had bought the second property in the hope of getting money under the deceased's Will.

85 I must now review certain legal principles bearing upon the circumstances of the present case.

86 The law requires that the testator be of sound disposing mind both at the time when the instructions for the Will are given and when the Will is executed. If the Will is shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it is sufficient that, when he executes it, he appreciates that he is being asked to execute as his Will a document drawn in pursuance of those instructions, though he is unable to follow all its provisions: Williams on Wills (5th ed) at 24.

87 In Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ said at 565 that in order to exercise the power of disposition by the execution of a Will a testator must understand the nature of the act and its effects; understand the extent of the property of which he is disposing; be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. The mere fact that the testator was eccentric or was subject to one or more delusions is not, of itself, sufficient.

88 It is not necessary that the deceased should view his Will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple form. In deciding upon the capacity of the testator to make his Will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to. In other

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words, his capacity may be perfect to dispose of his property by Will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property.

89 A similar approach has been approved by the High Court. In Bailey v Bailey (1924) 34 CLR 558, an aged testator suffering from pneumonia gave instructions to a solicitor to prepare a Will for him. Three days later, he signed the Will with a mark, being then unable, through weakness to write his name. The High Court held that the propounders of the Will had established a prima facie case of testamentary capacity which had not been displaced, and therefore that the Will was valid. Knox CJ and Starke J approved the reasoning in Banks v Goodfellow (supra) at 566. Isaacs J set out, at 570, a number of "working propositions" derived from the decided cases.

90 Isaacs J noted that the onus of proving that an instrument is the Will of the alleged testator lies on the party propounding it. This onus continues during the whole case and must be determined upon the balance of the whole evidence. The proponent's duty is, in the first place, discharged by establishing a prima facie case, that is to say, one which satisfies the Court judicially that the Will propounded is the last Will of a free and capable testator. A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances.

91 The learned Judge went on to cite as instances of material circumstances (a) the nature of the Will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the Will or any person having motive and opportunity and exercising undue influence taking a substantial benefit. Once the proponent establishes a prima facie case, then the burden of proof lies upon the party impeaching the Will to show that it ought not to be admitted to proof.

92 Isaacs J said further that in order to displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was, in fact, exercised, or that the illness of the testator so affected his mental faculties as to make

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them unequal to the task of disposing of his property. While the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions. Where instructions for a Will are given on a day antecedent to its execution, the former is by long established law the crucial date.

93 The reasoning of the High Court in Bailey v Bailey (supra) suggests that where there are no suspicious circumstances, the requisite knowledge and approval of the testator will be presumed by the Court from the due execution of the Will. Also see West Australian Trustees v Holmes [1961] WAR 144.

94 Where in the opinion of the Court circumstances exist which give rise to a suspicion that the terms of the Will do not accord with the intention of the testator, the Court will not admit the Will to probate unless the propounder removes the suspicion and affirmatively proves that the contents of the Will were known to and approved by the testator. The suspicion of the Court will always be aroused where the testator was blind, illiterate or mentally or physically enfeebled or the Will had been prepared by a person who, or whose child, benefited under it.

95 The degree of suspicion will vary with the circumstances of the case. In some cases, the suspicion will be slight and easily dispelled, but in others it may be so grave that it can hardly be removed: McCredie, "Wills, Probate and the Administration of the Estates of Deceased Persons in Victoria", (2nd ed) par 118.

96 In Nock v Austin (1918) 25 CLR 519 the Will had been prepared by the plaintiffs, one of whom was a solicitor. Both plaintiffs received large benefits. The High Court held that the decision in favour of the plaintiffs should not be disturbed as the trial Judge had sufficiently directed his mind to the suspicious circumstances and been satisfied by the plaintiffs that the testator knew and approved of the contents of the Will.

97 Isaacs J said at 528 that in general where there appear to be no circumstances exciting suspicion the mere proof of the testator's capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. If the Court is not judicially satisfied that the

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document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.

98 The learned Judge went on to say that the circumstance that a party who takes a benefit wrote or prepared the Will is one which should generally arouse suspicion and calls for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the Will. But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. Nor does the rule require, as a matter of law, any particular species of proof to satisfy the onus.

99 In Worth v Clasohm (1952) 86 CLR 439 a widow died at the age of 86, having executed a Will nine months earlier. The trial Judge found that the deceased was suffering from senile degeneration and was subject to a delusion that people were stealing her possessions and that her food was being poisoned by certain relatives. The Will was drawn by the plaintiff who was a solicitor and nephew of the deceased and a beneficiary named in the Will. The trial Judge recognised that the circumstances were such as ought to excite the suspicion of the Court, and that he ought not to pronounce in favour of the document unless a vigilant and zealous examination of the evidence satisfied him that it expressed the true will of the deceased.

100 The trial Judge felt at the end of the case a sufficient doubt to refuse probate of the Will and, in doing so, gave some weight to the evidence of a Dr Goode, a general practitioner, who had treated the deceased for various ailments and thought that her mental condition was poor because she kept on repeating herself and talked incoherently.

101 The High Court allowed an appeal against the ruling of the trial Judge and, in doing so, noted that Dr Goode had no special qualifications in mental disorders and did not profess to have made any efforts to test the testatrix for her capacity to understand business matters or to weigh rationally considerations of the kind which are material in deciding upon testamentary dispositions.

102 The High Court acknowledged that the evidence of Dr Goode and another witness should properly be regarded as raising a doubt as to the validity of the Will. Nonetheless, in the final analysis, the High Court considered that there were a number of features which in combination decisively outweighed the causes of the trial Judge's doubt. These

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features included the character of the dispositions made by the Will and by three earlier Wills, the impression of the testatrix depicted by various competent observers, including the fact that she seemed to take an intelligent interest in and to appreciate fully everything that was said to her. The evidence did not identify any deficiency of memory, or any failure to appreciate the extent or nature of her property or the claims of her relatives.

103 The High Court went on to say that a doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the Court that the testatrix retained her mental powers to the requisite extent. But that is not to say that she was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. Criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties placed before the Court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the Will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. It appeared to the High Court that there was ample ground for that belief in the case in question.

104 I note also that in Silvester & Ors v Tarabini & Ors, unreported; SCt of WA; Library No 960062; 13 February 1996 Anderson J considered that mere proof of a serious illness will not necessarily lead to a conclusion of want of testamentary capacity. There must be evidence that the illness affected the testator's mental faculties to a degree sufficient to deprive the testator of testamentary capacity.

105 I must now apply these principles to the circumstances of the present case. The burden of proof rests upon the plaintiff, Mr Roebuck, and the requirement is that the plaintiff must satisfy the Court upon the balance of probabilities that the deceased, Mr Smoje, was of a sound disposing mind, both at the time when the instructions for the Will were given and when the Will was executed. In my opinion, the circumstances of the present case do give rise to a suspicion that the terms of the Will do not accord with the intention of the testator, with the result that the plaintiff is required to remove the suspicion and affirmatively prove by clear and satisfactory evidence that the contents of the Will were known to and approved by the testator.

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106 The matters I refer to in forming the opinion I have just mentioned include the fact that the deceased, as at March 1996, was elderly and living alone. He was not in regular communication with members of his family circle, or other persons who might have given him counsel as to the management of his affairs. I note also that the person with whom he was in regular contact was the plaintiff, who was destined to become the principal beneficiary under the 1996 Will. It is apparent also from the evidence given at the trial that the plaintiff was instrumental in making arrangements for the execution of the Will and the two witnesses, Elaine Turnbull and Linda Pallier, had a connection to the plaintiff. Against this background, it is quite clear that I am required to exercise special vigilance in assessing the evidence and in determining whether the plaintiff has discharged the evidentiary requirements placed upon him in the circumstances of this case.

107 I am obliged to say at the outset that the plaintiff himself was not an impressive witness. It soon became apparent in the course of his cross-examination that there were inconsistencies between the version of events he presented at the trial concerning the execution of the 1996 Will and the account he had provided previously in the affidavits lodged in support of his application for probate. The replies he gave to questions put to him were not forthright and he was unable to provide any clear explanation as to why the cremation of the deceased was accomplished with haste, and without notification to those likely to have an interest in the matter, such as members of the deceased's family or the RSL. Further, the plaintiff was unforthcoming and evasive when asked to describe his own financial circumstances. It emerged by degrees that he had undertaken substantial financial commitments on the assumption that the benefits under the Will would be vested in him.

108 The plaintiff's description of what took place upon the day the 1996 Will was executed is also coloured by the fact that in his evidence-in-chief he conveyed an impression to the Court that the deceased was living in moderately comfortable circumstances and was able to cope with his domestic situation. It was apparent, however, from other evidence, and especially from the evidence of the occupational therapist, Narelle Lancaster, who visited the deceased's home in 1996, that the deceased was living in circumstances akin to squalor.

109 The evidence shows that the plaintiff took active steps to arrange for the Will to be executed at a time when there appeared to be a real likelihood that the deceased might soon have to find alternative accommodation in an aged persons' home or similar establishment. It is

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also significant that even though he attended to the necessary arrangements, the plaintiff, simultaneously, took very careful steps to stay out of the way while the Will was being executed as if he were aware that his presence on the scene could possibly complicate an application for probate of the Will. These considerations prompted me to pay very careful attention to the evidence of the witnesses present at the execution of the disputed Will.

110 I have already noted that the evidence of one witness, Elaine Turnbull, was received in the form of a deposition. The Court was deprived of the opportunity to make an appraisal of her demeanour and to assess the readiness of her responses to the questions put to her. Nonetheless, one has to take account of the fact that she was subjected to cross-examination and that the questions directed to her went to the main areas of controversy. The answers she gave were generally consistent with the answers given by her fellow witness, Linda Pallier, and they did seem to establish that the Will was read to the deceased, he appeared to understand the contents of the Will and what was going on around him generally, and that he executed the Will and the accompanying letter freely.

111 It is apparent to me when I review the evidence as a whole, that the deceased would not have had the capacity to dictate to Elaine Turnbull a well-constructed letter setting out the reasons for excluding members of his family from the Will. Nonetheless, I am obliged to take account of Elaine Turnbull's explanation that she turned the deceased's words into a coherent structure. Her explanation is sufficient to overcome my doubts as to that aspect of the matter.

112 This brings me to the evidence of Linda Pallier. She was cross-examined at some length about the nature of her financial relationship with the plaintiff. It became apparent from her evidence that she had allowed her name and financial situation to be used by the plaintiff in obtaining loans that would not otherwise have been available to him, having regard to his own reduced circumstances. This caused me to exercise a high degree of vigilance in making an appraisal of Linda Pallier's evidence.

113 I must also take account of the fact that the financial relationship between the plaintiff and Linda Pallier remains on foot, with the result that, indirectly, she stands to benefit if the plaintiff succeeds in his claim. He will be in a position to reorganise his financial affairs and possibly repay the loans or reduce the extent of his liability. Linda Pallier will then

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be at less risk. The tenor of her evidence was that she lent her name to the transactions in question simply as a friendly gesture. It seemed surprising that a person of her intelligence should have been willing to undertake potential liabilities without any prospect of remuneration. When pressed about this aspect of the matter in cross-examination, her explanation was that to her mind the properties securing the loans could always be sold. The properties had sufficient value in them to meet the amounts outstanding and it was therefore unlikely that she would be subjected to any liability.

114 It follows from these observations that I have exercised special care in reviewing the evidence of Linda Pallier. She will benefit indirectly if the plaintiff succeeds in his claim and there was a degree of improbability in her contention that she had never discussed the matter with the plaintiff or made any detailed inquiry as to how he was servicing his loans. I have to say, however, notwithstanding the surprising nature of her financial involvement with the plaintiff, I came to the conclusion that Linda Pallier was a forthright witness. She was not ruffled by the questions put to her and generally appeared to be frank and open in the answers she gave, especially as to the events surrounding the execution of the 1996 Will. She professed to have a clear memory of the events of that day and, in the course of a thorough cross-examination, no major inconsistencies in her testimony were exposed. I was satisfied eventually that, at least in regard to the events of the day in question, her word could be relied upon.

115 I pause to say that I was also obliged to take account of the possibility that the plaintiff's less impressive demeanour might have something to do with a general sense of embarrassment in having involved Linda Pallier in his financial affairs and in having the full detail of the transactions in question brought to light. His demeanour weighed against him, but did not necessarily demonstrate that no part of his evidence concerning execution of the Will was to be believed. On the other hand, Linda Pallier seemed rather ingenuous and likened her financial involvement with the plaintiff to the occasion on which she acted as a guarantor for her daughter.

116 This brings me to the state of the deceased's health as at 7 March 1996 and some other circumstances bearing upon the execution of the disputed Will. The deceased was close to 82 years of age and was undoubtedly subject to various infirmities, including impairment of his hearing and eyesight. It is apparent from the evidence of Narelle Lancaster that he had become somewhat frail and forgetful, and her description of his domestic situation suggests that he did not fully

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appreciate the extent to which his physical powers were declining. The plaintiff himself, somewhat reluctantly, was prepared to concede in the course of his evidence that the deceased was living in unclean conditions and was in need of assistance.

117 However, I am obliged to give considerable weight to the evidence of Dr Tarnawski and Dr Brown, both of whom were familiar with the deceased's circumstances at a point in time close to when the Will was executed. Dr Tarnawski acknowledged that the deceased had experienced various medical problems and had decreased hearing, but he did not seem to think that the deceased was incapable of coping with his situation. He described the deceased as an intelligent person with no real mental problems. Dr Brown's expertise was in the field of diminishing mental capacity in the aged and he was obviously well placed to notice any symptoms of dementia. In his opinion, the deceased would have understood the nature of what he was doing and would have been in a position to take account of the various considerations bearing upon the making of an effective Will. In his view, the deceased's physical illnesses did not affect his mental state or decision-making capacity at the time he made the Will.

118 To my mind, the evidence submitted on behalf of the defendants was not sufficient to rebut or qualify to any significant extent the evidence given by Dr Tarnawski and Dr Brown. It is true that Dr Anastas and Ms Goulios documented the deceased's impairments as to hearing and vision. A careful review of this part of the evidence suggests, however, that if the deceased was equipped with his reading glasses and with his hearing aid at the time the Will was executed, he would have been able to engage in normal conversation and to have understood what others were saying to him. If the Will was read aloud in his presence, he would have been able to take in what was being said.

119 The evidence given by the two witnesses to the Will, Elaine Turnbull and Linda Pallier, appears to be consistent with the tenor of the medical evidence. I must take account of the fact also that both Dr Tarnawski and Dr Brown were of the view that the deceased was an intelligent man and capable of participating in a normal conversation. The tests undertaken at this time are also consistent with the evidence given by the witnesses. Reference was made to some comparatively small diminution in his powers of cognition and short-term memory, but on the whole the contemporary documentation presents a picture of a man who was capable of understanding and executing an important, but short, legal document. I must also take account of a factor that is implied in a good deal of the

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evidence: the deceased was a man of strong and independent character. Even in ill-health, besieged by the problems of old age, it seems unlikely that his will would be easily overborne by forceful demands or guile.

120 Against this background, let me now return to some of the material circumstances identified by the decided cases that are thought to have a bearing upon the issues before me.

121 I note that the 1996 Will is comparatively simple in its terms and would not have been difficult to understand if read aloud to the deceased shortly before being executed, and if he had an opportunity to read it. It is true that the Will makes no provision for the deceased's family. However, the evidence is quite clear that he had experienced a long period of estrangement from his former wife and from his children. This estrangement is underlined by the fact that the terms of his earlier Will made in 1991 also had the effect of excluding his family members. On that occasion, the second defendant was the exclusive beneficiary.

122 It is true that the plaintiff, as the person arranging the execution of the Will, was in a position to exercise some influence upon the deceased. On the other hand, as the letter accompanying the Will indicates, the deceased himself had arguably identified the reason why he wished to confer a benefit upon the plaintiff as a person who had befriended him in his declining years. I must take account of the evidence given by Dr Tarnawski and Dr Brown, and confirmed to some extent by Narelle Lancaster and other witnesses, that the deceased was a prickly and obstinate man. As I have already noted, this suggests that he would not be easily overborne or compliant in the hands of a person who wished to influence his testamentary intentions. A man of this nature might decide, in the exercise of his own free will, to benefit a particular individual, especially in circumstances where, in his perception, members of his family circle had no particular claim upon his bounty. It is also significant that he did not exclude the RSL from his Will entirely, although the RSL had been the exclusive beneficiary under the 1991 Will.

123 When I draw together all these matters, I have to acknowledge, again, that there are circumstances in the present case which arouse suspicion as to whether the 1996 Will represents the free exercise of the deceased's intentions. In the circumstances of the present case, bearing in mind the financial relationship between the witnesses to the disputed Will, a high degree of vigilance is required in resolving the central issue. Nonetheless, the decided cases indicate that the rules requiring special vigilance in these circumstances should not be regarded as introducing an

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inevitable disqualification. The decided cases show that a residual doubt is not enough to defeat the plaintiff's claim unless it is felt by the Court to be substantial enough to preclude a belief that the document contended for by the plaintiff is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution. The plaintiff has the burden of removing the suspicions and of proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the Will.

124 When all the relevant factors are balanced up, I am satisfied, having regard to the weight of the medical evidence provided by Dr Tarnawski and Dr Brown, that the deceased had sufficient mental capacity to make the 1996 Will. I am satisfied also that the burden of proof imposed upon the plaintiff of removing suspicions and of establishing that the disputed Will should be proved in solemn form has been discharged.

125 In my view, the circumstantial evidence and somewhat equivocal inferences relied upon by the first defendants were not sufficient to rebut or significantly qualify the evidence of the two witnesses to the Will that the deceased understood what he was doing and executed the disputed Will freely. I am satisfied that findings to this effect should be made on the balance of probabilities. There was no direct evidence to the contrary. It is apparent from evidence led by the first defendants that the children of the deceased had been estranged from their father for many years. There is therefore a satisfactory explanation as to why they were excluded from his Will.

126 I must now turn to the question of undue influence.

127 Undue influence is a form of influence that goes beyond the permissible or legitimate, having regard to the degree of pressure brought to bear and the evident susceptibility of the person concerned to such pressure from factors such as mental frailty. Undue influence in probate is distinct from the equitable doctrine of undue influence. Influence generally in the form of persuasion or moral pressure to favour a person by Will, whatever its degree, is not invalidating in probate unless it produces a gift or Will contrary to the will of the testator. What is required to be proved is actual "coercion" of the mind so as to produce an act contrary to the will of the testator.

128 It is not sufficient to establish merely that one party has the potential power unduly to overbear the will of the testator. This emphasises a further difference between the equitable principle of undue influence and

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the principle in probate, namely, that there are no presumptions of undue influence in probate: actual and effective coercion must be proved.

129 The decided cases suggest that to make a good Will, a man must be a free agent, but all influences are not unlawful. Appeals to family affections or gratitude for past services are legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character which overpowers the volition is a species of restraint under which no valid Will can be made. The Will must be the offspring of the testator's own volition and not the record of another's volition. See Hall v Hall [1868] LR 1 P & D 481.

130 The onus of establishing undue influence rests upon the party alleging it at all times. The fact that there are circumstances which arouse the Court's suspicion about the Will does not affect the issue of undue influence. It follows from this review of the relevant principles that the defendants in the present case must demonstrate that there was an actual coercion of the mind which produces an act contrary to the will of the deceased.

131 The facts and matters relied upon by the defendants in the present case are set out in par 6 of the defence and counterclaim of the first and second-named defendants. The plea is that the execution of the Will was obtained by the undue influence of the plaintiff and others acting with him, namely, Elaine Turnbull and Linda Pallier. The particulars presented in support of this plea are that the plaintiff took advantage of the age of the deceased and of his physical condition and induced the deceased to make the purported Will; that is to say, the 1996 Will.

132 I have already noted that in my opinion the circumstances surrounding the execution of the Will are properly characterised as suspicious circumstances. This made it necessary for me to undertake a careful review of the evidence and to exercise special vigilance before concluding that the disputed Will should be pronounced in solemn form. In the final analysis, however, I was satisfied that the plaintiff had established affirmatively, upon the evidence as a whole, that at the relevant time the deceased was of sound mind, memory and understanding, and knew of and approved the contents of the 1996 Will. My reasoning included reference to the role played by the two witnesses, Elaine Turnbull and Linda Pallier. I concluded eventually that their evidence concerning the execution of the Will had not been rebutted or significantly qualified by countervailing evidence and should be accepted.

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133 Accordingly, as to that part of the plea of undue influence which relies upon the role played by Elaine Turnbull and Linda Pallier. I am not persuaded that these two witnesses acted in a manner which resulted in some actual coercion being brought to bear so as to override the deceased's volition.

134 Similar, but slightly different, considerations apply when I turn to the conduct of the plaintiff in the context of the undue influence issue. I have already indicated that I was not impressed by the plaintiff as a witness and am unable to say that all my doubts were put to rest as to the manner in which the 1996 Will was brought into existence and executed by the deceased. Nonetheless, I have already accepted that in seeking to have the 1996 Will proved in solemn form, the plaintiff was not obliged to establish his case beyond all residual doubt or even beyond reasonable doubt. The plaintiff was instrumental in having the deceased execute a Will which bestowed benefits upon him, but there is very little evidence to suggest that the deceased was subjected to coercion. The deceased was a man of obstinate and idiosyncratic temperament and one cannot therefore lightly dismiss the possibility that in his declining days he simply decided to confer a benefit upon the friend who had been of assistance to him.

135 The defendants in these proceedings cannot point to direct or specific evidence of coercion and the evidence of the plaintiff and of the two attesting witnesses is to the contrary. In seeking to discharge the burden of proof that lies upon them concerning the allegation of undue influence, the defendants rely principally upon inferences referable to the age and supposed infirmity of the deceased and the nature of his domestic situation.

136 I have come to the conclusion that inferences of the kind relied upon by the defendants are not sufficient to outweigh the matters to the contrary relied upon by the plaintiff, including principally the evidence of the attesting witnesses which suggested that the deceased was not subject to coercion while giving instructions for his Will or at the moment when the Will was executed. Accordingly, I am not satisfied that the defendants have established undue influence. I therefore find against the defendants as to this aspect of the matters in controversy. In par 9 of the first and second-named defendants' statement of defence an issue was raised that the residuary gift to the plaintiff was void and of no effect by virtue of s 13 of the Wills Act 1970, but this issue was not pursued at the trial of the action.

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137 In summary, then, the claim advanced by the plaintiff will be allowed, with the result that the Court will pronounce for the force and validity of the Will of Pasko Smojo, bearing date the 7th day of March 1996 in solemn form of law. I will hear from the parties as to whether any further orders of the Court are required.

Roebuck v Smoje

[2000] WASC 312

20 DECEMBER 2000

ROEBUCK -v- SMOJE & ORS [2000] WASC 312